The Oregon Court of Appeals revived a $3.7 million wrongful death suit, stating a jury should decide whether the city of Portland will be liable for failing to maintain a crosswalk where Lindsay Leonard was struck and killed by a grocery chain delivery driver.
Lindsay and her roommate were walking home from a nearby grocery store when they were struck by Tito Feliciano’s truck in a poorly marked crosswalk. Leonard and her friend died from their injuries.
Lindsay’s father filed a wrongful death negligence action suit against Moran Foods, Inc., owner of Save-A-Lot food stores, Supervalu, Inc., delivery driver Tito Feliciano, the City of Portland, and Portland General Electric Company (PGE).
At trial, Leonard was found 51 percent liable for the accident responsible for her death. Additionally, the court granted summary judgment on the claims against Supervalu, for the plaintiff’s failure to provide enough evidence to find the company liable for negligent training of Feliciano.
The appeals court ordered a new trial against defendants Feliciano, Moran Foods and the city.
On appeal, the court addressed several issues including whether the lower court erred in dismissing the plaintiff’s claims against Moran Foods and the City of Portland.
Leonard contended that Feliciano, a Moran Foods employee, was distracted by talking or answering his company cell phone prior to the incident and violated his employer's policies. Moreover, Leonard argued if Moran Foods and Supervalu had adequately trained Feliciano on driver safety and company cell phone use, the accident would not have occurred.
Feliciano had traveled the route numerous times and testified he recalled two signs warning him to look for pedestrians.
The court concluded the evidence was insufficient to show that Feliciano was distracted by his cell phone at the moment the collision took place. Previously, Feliciano made four calls to food stores on his route but the calls were made well in advance of the incident.
The phone records showed no calls received at or just before the accident was reported to emergency dispatchers, the court said.
Allowing some deference to the plaintiffs, the court believed Feliciano was distracted by something but it was not his cellphone.
The court could not find Moran and Supervalu negligent in providing adequate training and thus could not attribute this conduct to the accident. However the employers’ could still be held vicariously liable for the negligent acts of Feliciano.
On remand, the employers will defend against Feliciano’s failure to maintain a reasonable lookout while approaching the intersection and the jury’s instructions of the use of mobile devices (the original jury instruction quoted an inapplicable law).
Additionally, the family took the position that the faded markings and a streetlight outage in the crosswalk were a “substantial factor” in the collision.
Specifically, the family argued that the worn markings and the streetlight created a “dark zone” at night, limiting Feliciano’s ability to see Lindsay and her roommate as they passed through the area.
If the ladder bars had not been faded to the asphalt, the driver’s attention would have been drawn to the area and prevented or eliminated the collision, the family argued.
PGE operates and maintains the street lights at the crosswalk. On the night of the accident, the streetlight was out. PGE settled with the plaintiff and will not be a party to the case on remand.
The City requested the appeals court to affirm its summary judgment because a finding of negligence would be inconsistent with the evidence presented at trial and no reasonabla jury could find the crosswalk was inadequately maintained.
Rejecting this argument the court said, “a reasonable jury could find a faded crosswalk impaired Feliciano’s ability to see Lindsay and her roommate.”
Although Feliciano testified he was looking in the direction of the crosswalk at the time of the incident, there was in fact a dark zone.
The plaintiff presented line-of-sight photos from a driver's perspective and overhead photos taken by PortlandMaps.com. The overhead photo was “even more striking” because there was no trace of white paint visible. The driver's photos show the area worn to asphalt or covered with dirt.
A city transportation manager stated “a pretty darkly dressed person . . . and her surroundings would likely be better” in the presence of a white ladder bar.
Lindsay was wearing a black coat, gray pants, and black boots. Her roommate was also wearing a black coat. The court said a rational inference could be made Lindsay and friend were in the dark zone.
Finally, the court specifically stated:
“A reasonable factfinder could infer had the crosswalk markings been properly maintained, thereby eliminating the dark zone, Feliciano more likely than not would have been able to see Leonard and roommate as they crossed the road, allowing him to take the steps necessary to avoid the collision or minimize harm.”
The case is Lane Leonard v. Moran Foods, Inc. et al., Case No. A150101, Court of Appeals of Oregon, Multnomah County.
Arguing for the plaintiff was Richard J. Vangelisti, Vangelisti Law Firm, LLC
Arguing for the defense was Jan K. Kitchel, Cable Huston